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Exhibit 10.2
SUPPLEMENT AND AMENDMENT AGREEMENT
This Supplement and Amendment Agreement (this "Agreement"),
dated as of September 30, 1995 (this "Agreement") by and between Xxxxxx Xxxxxxx
Corporation, a corporation organized under the laws of New York ("Purchaser")
and X. Xxxxxxxx Corporation, a corporation organized under the laws of Finland
("Seller").
W I T N E S S E T H :
WHEREAS, Purchaser and Seller have entered into a Purchase
Agreement, dated as of June 21, 1995 (the "Purchase Agreement"), pursuant to
which Purchaser has agreed to, or to cause one or more of its designees to,
purchase the Power Generation Business (as defined in the Purchase Agreement)
from Seller and its Affiliates; and
WHEREAS, Purchaser and Seller desire to supplement and amend
the Purchase Agreement; and
WHEREAS, pursuant to Section 14.5 of the Purchase Agreement,
the Purchase Agreement may be amended by a written instrument executed by
Purchaser and Seller.
NOW, THEREFORE, in consideration of the mutual benefits
accruing to the parties hereto, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Capitalized Terms. All capitalized terms used but
not defined in this Agreement shall have the meaning given to such term in the
Purchase Agreement.
2. Amendments. (a) Section 1.1 of the Purchase
Agreement is hereby amended by deleting POSCO Panther Creek, Inc., Multipower
Associates, Pisces Power Company, Inc., Sagittarius Power Company, Cottonwood
Energy Partners, L.P. and Xxxxxxxx Pyropower Development Ltd. from the
definition of "Subject Companies."
(b) Section 2.7 of the Purchase Agreement is hereby amended
by deleting the last sentence thereof and inserting in place thereof the
following sentence: "For
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purposes of this Agreement, "Closing Date" shall mean September 30, 1995."
(c) Section 3.1(b)(i)(A) is hereby deleted in its entirety
and replaced with the following:
"(i)(A) one-hundred and eighty-six million US dollars
($186,000,000) , plus."
(d) Section 3.2(e) of the Purchase Agreement is hereby
amended by deleting "$195,000,000" in the eighth line thereof and inserting in
place thereof "$186,000,000."
(e) Section 8.11 of the Purchase Agreement is hereby amended
by deleting clause (b) and changing "(c)" to "(b)" in the fifth line thereof.
(f) Section 10.5(a)(iii) of the Purchase Agreement shall read
in its entirety as follows:
"(iii) Purchasers agree, covenant and acknowledge that from
and after the Closing Date, they will not give, sell, use or otherwise
divulge any Confidential Information relating to the Recovery Boiler
Business. In addition, Purchasers agree that none of such
Confidential Information will be used by Purchasers in the Recovery
Boiler Business except as may be necessary to perform work for Seller
or any of its Affiliates.
(g) Section 13.2(a)(vi) of the Purchase Agreement is hereby
deleted and clause (vii) thereof is hereby re-numbered "(vi)".
(h) Section 13.4 of the Purchase Agreement is hereby amended
by adding after the term "4.13" and before the ";" the term "Item 10 of 4.17."
3. Preliminary Closing Balance Sheet and Final Closing
Balance Sheet. Attached hereto as Exhibit A-1 is the restated monthly
management reports of the Power Generation Business for the eight months ended
August 31, 1995 which were delivered to Purchaser pursuant to Section 8.2 of
the Purchase Agreement (the "August Financial Statements"). The August
Financial Statements, as adjusted by Purchaser and Seller, are attached hereto
as Exhibit A-2 (the "Adjusted August Balance Sheet"). Purchaser and Seller
agree that the Adjusted August Balance Sheet shall be deemed the "Current
Monthly Balance Sheet" for purposes
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of the Closing Payment and that the adjustments so agreed upon by Purchaser and
Seller will be reflected in the Preliminary Closing Balance Sheet and the Final
Closing Balance Sheet to the extent that the operative units have not already
booked the effects in their September accounts.
4. Representations and Warranties. Seller hereby
represents, warrants and agrees as follows:
(a) the warranty period under the contract between APCSI and
Southeast Paper relating to air heaters has expired and no warranty
claim was made thereunder prior to, or subsequent to, the expiration
of such warranty period;
(b) APKK is not legally obligated to pay the remaining
portion of the total fee of Yen 50 million for a golf membership at a
club in Japan; and
(c) the bridge referenced under "Varkaus" in the attachment
to the September 6, 1995 letter from Xxxxx Xxxxxxx to Tor-Xxxx
Xxxxxxxx is not included in the property being transferred to
Purchaser or its affiliates pursuant to Section 2.1(b)(i) of the
Purchase Agreement.
5. Indemnification. (a) Seller shall indemnify, defend and
hold harmless each Purchaser Indemnified Party from and against any and all
Losses incurred by any Purchaser Indemnified Party arising out of or relating
to:
(i) the breach of any representation or warranty made by
Seller in Section 4 or Section 7.8 in respect of the Siam Paper
project of this Agreement;
(ii) the redesign and resupply of all or part of the ash
coolers at the Grant Town project (Xxxxxxxx project number 543) and
amounts payable to Grant Town as compensation for extra wear and tear
on ash coolers; provided, however, that the maximum amount payable
under this clause (ii) is $1,700,000; and provided further, however,
that the indemnity under this clause (ii) shall terminate in the event
that Purchaser is reasonably satisfied that Denver Sala has accepted
responsibility for the redesign and resupply of all or part of the ash
coolers and for any compensation for extra wear and tear on the ash
coolers;
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(iii) sales Taxes payable by APCSI after the Closing under
contracts for services to be provided by APCSI in effect on the
Closing Date;
provided, however, that the indemnity under this clause
(iii) shall terminate with respect to any contract that is amended or
modified by APCSI after the Closing Date and shall not apply to any
purchase order received after the Closing Date under a blanket
purchase order in existence on the Closing Date to the extent that
APCSI has the ability to require the customer to pay sales taxes under
such purchase order;
(iv) the retention of Coopers & Xxxxxxx to assist APCSI or
any other Subject Company in the investigation and/or resolution of
its liability for sales Taxes prior to the Closing Date provided that
such firm is retained with the consent of Seller;
(v) liability for Chinese taxes on the Dalian Chemical
project (Xxxxxxxx project number 553), the Liao He project (Xxxxxxxx
project number 559) and the Hangzhou project (Xxxxxxxx project number
561);
(vi) subject to Section 7.10 of this Agreement, APCSI
Warranty Costs (as defined in Section 7.10) due to the air heaters
delivered for the Rumford and Colmac-Mecca projects, up to a maximum
aggregate amount equal to $9,000,000;
(vii) warranty claims under any agreement, contract,
commitment, bid or proposal that remained open at the Closing
(including, without limitation, those bids and proposals set forth on
Exhibit B attached hereto) entered into or made by APCSI prior to the
Closing (other than those referred to in clause (vi) above) that had a
warranty period of more than two years which are brought against APCSI
more than two years after the date on which services or materials were
furnished by APCSI, up to a maximum of $3,000,000;
(viii) payment and performance obligations of PC or any other
Subject Company under the settlement agreement relating to the Nova
Scotia project referred to as item B14 of Schedule 4.13; and
(ix) consequential damages for which APCSI may be liable as a
result of work performed, actions taken or not taken, or for any other
reason in respect of
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any contract entered into prior to the Closing or any bid or proposal
that remained open at the Closing due to the failure of such contract
to contain a waiver of consequential damages, up to a maximum of
$4,000,000; provided, however, that the indemnification provided by
this clause (viii) shall be in addition to, and not any limitation
of, the obligation of Seller to indemnify the Purchaser Indemnified
Parties under Section 13.2(a)(iv) of the Purchase Agreement.
(b) All claims for indemnification under this Section 5
shall be made in accordance with the procedures set forth in Section 13.3 of
the Purchase Agreement.
6. Waivers. (a) Purchaser hereby waives the conditions set
forth in Section 7.13(a) and Section 7.13(b) of the Purchase Agreement.
(b) Seller hereby waives the conditions set forth in Section
6.6(a) and Section 6.6(b) of the Purchase Agreement.
7. Other Agreements. Purchaser and Seller hereby agree as
follows:
7.1 EVT Agreement. In addition to any other obligations
which Seller may have with respect to Non-Conveyed Contracts under the Purchase
Agreement, Seller shall take the following steps and actions with respect to
the agreement between Seller and EVT Energie - und Verfahrenstechjk GmbH
("EVT") as amended and restated on November 14, 1993 (the "EVT Agreement"):
(i) Seller shall promptly inform Purchaser of any
notices, communications, discussions or any other information,
from whatever source, obtained by Seller with respect to the
EVT Agreement or EVT's activities thereunder. Seller shall
immediately inform Purchaser if it becomes aware or has any
reason to believe that EVT has breached any of its obligations
or covenants under the EVT Agreement;
(ii) Seller shall not contact, correspond or
otherwise communicate with EVT with respect to the EVT
Agreement without prior consultation with Purchaser;
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(iii) Seller shall follow Purchaser's directions
with respect to the EVT Agreement, including, without
limitation, sending notices of default under the EVT Agreement
and initiating and pursuing such legal actions or proceedings,
with such legal counsel, as Purchaser, in consultation with
Seller, but in Purchaser's sole discretion, shall direct; and
(iv) In the event Purchaser instructs Seller to
initiate litigation regarding Seller's rights under the EVT
Agreement, Purchaser will pay all costs and fees relating
thereto, including attorneys fees and disbursements, and any
other Losses; provided, however, that Purchaser will not be
responsible for costs, fees or any damages relating to claims
made against Seller arising out of or resulting from Seller's
pre-Closing activities or any post-Closing actions taken by
Seller without prior consultation and approval of Purchaser.
7.2 Sulzer Agreement. Notwithstanding anything to the
contrary in this Agreement or the Purchase Agreement, Seller and Purchaser
agree that with respect to the License and Technical Collaboration Agreement
between X. Xxxxxxxx Osakeyhtio and Sulzer Brothers Limited ("Sulzer") dated as
of November 30, 1975 ("Sulzer Agreement"), Purchaser agrees to promptly
reimburse Seller for any annual minimum fees and fixed remuneration actually
made to Sulzer by Seller under the terms of the Sulzer Agreement, up to a
maximum amount equal to $55,000.
7.3 Shared Assets. Schedule 4.32.III sets forth a
tentative list of Shared Assets relating to computer hardware, software,
telecommunications and other information systems. Seller and Purchaser agree
that promptly, but in no event more than 30 days, after the Closing members of
the Shared Asset task force (or their designees) will meet to evaluate the
computer hardware, software, telecommunications and other information systems,
equipment, data and technology used by the Power Generation Business (the
"Information Systems") and will determine whether any Information Systems are
used by both the Power Generation Business and Seller's other businesses
("Shared Information Systems"). The task force will conduct similar activities
with regard to the library at Varkaus.
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To the extent any Shared Information Systems are determined to
exist, the Shared Assets task force will determine which party is the primary
user of such Shared Information Systems (or portions thereof in the event they
can be split without materially altering the utility of the system) and
Purchaser will obtain from Seller or third parties, the appropriate assignments
of proprietary rights, assignments of contract rights, licenses and such other
legal documentation as may be necessary to transfer any license rights to or
vest legal title of the Shared Information Systems in the name of the primary
user and to permit the other user to enjoy such rights in the Shared
Information Systems as if it were the owner or licensee.
7.4 Trademarks. Unless otherwise requested by Purchaser,
upon expiration of the Trademark License Agreement, Seller shall cancel or
otherwise terminate any trademark registration or application for any trademark
registration owned by Seller which incorporates or includes the name or xxxx
XXXXXXXX along with a xxxx or term assigned, or to be assigned, to Purchaser,
including, without limitation, XXXXXXXX PYROFLOW and XXXXXXXX PYROPOWER.
In addition to any of Seller's obligations under Section 8.10
of the Purchase Agreement, Seller shall take all steps reasonably requested by
Seller to obtain or assist in obtaining recordation, in the trademark office of
Japan, of the assignment and transfer of the trademark application for
PYROFLOW, including, without limitation, restricting the goods and services
covered under the trademark registration for "XXXXXXXX PYROFLOW" in Japan (by
excluding therefrom coverage of goods and services related to the Power
Generation Business) and permitting Purchaser to file unopposed new
applications for registration of "PYROFLOW" in Japan in its own name, provided,
however, that Seller shall not be liable for any adverse effects, whether as to
title, validity or enforceability, on such application arising from any action
taken by Purchasers to record transfer or to proceed with registration. In
connection with the foregoing, Seller shall have the right not to comply with
any proposed course of action other than those set forth above that would
materially adversely affect its other Marks or applications.
7.5 Patents. It is acknowledged by the parties
that inaccuracies and omissions may exist in Schedule 4.17 attached to the
Purchase Agreement and any supplements thereto, with respect to the identifying
numbers, patent and patent application titles or other identifying information
regarding the relevant patents filed or issued in the various jurisdictions.
Promptly, but in no event later than 60 days after Closing (unless with consent
of Purchaser), the parties shall jointly conduct an audit of Seller's patent
files, records, databases and information pertaining to the Xxxxxxxx Patent
families assigned and transferred or to be assigned and transferred to
Purchaser under the Purchase Agreement to verify and, if necessary, correct the
information set forth in Schedule 4.17. Concurrently, the parties shall make
arrangements to transfer custody of such files to Purchaser.
Seller agrees to provide any and all necessary assistance as
may reasonably be requested by Purchaser in conducting said audit, including,
without limitation, making available necessary personnel, information and
materials, all at no cost to Purchaser. In addition, Seller agrees to execute
and assist in the formal recordation of any additional assignments or transfers
of patents or patent applications necessary to correct inaccuracies contained
in any patent and patent application assignments or transfers listed on
Schedule 4.17. In the event any of the patent title ownership information in
Schedule 4.17 with respect to a patent relating to the Power Generation
Business is inaccurate and such title is not held by Seller or a Subject
Company, Seller will take all possible steps to obtain assignments or transfers
to Purchaser of said patents or application from the record or beneficial title
owner.
7.6. Schedules. Attached hereto as Exhibit C are revised
Schedules to the Purchase Agreement.
7.7 Environmental. (a) Seller hereby agrees that the
repair or replacement of the sewage and drainage systems beneath Plant A and F
in Sosnowiec, Poland constitutes Compliance Costs and agrees to indemnify
Purchaser for the cost of the replacement or repair thereof in accordance with
good engineering practice after the Closing Date. Whether or not costs and
expenses that may be incurred for repair of the subsidence at Plant A or for
repair or replacement of concrete floors at Plants A and F in Sosnowiec, Poland
are covered by the Environmental Indemnity in Section 13.2(a)(iii) of the
Purchase Agreement shall be determined at or about such time as the repairs or
replacement are undertaken.
(b) It is acknowledged by Purchaser and Seller that the
categorization of costs by the Consultant in its
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final audit report as Compliance Costs or Future Expected Costs shall not be
binding on the parties or any tribunal in determining whether a particular cost
(including without limitation (i) the costs of repairing concrete floors or
subsidence in Poland and (ii) the costs of installing a wastewater treatment
plant in Karhula) is, or is not, covered by the Environmental Indemnity.
Capitalized terms used in this paragraph 7.7 shall have the same meaning as in
Exhibit F to the Purchase Agreement.
7.8 Contract Reviews. Attached hereto as Exhibit D is a
copy of the agreements reached between Seller and Purchaser as part of the
contract review process outlined in Section 8.20 of the Purchase Agreement.
Purchaser and Seller agree that (1) the adjustments reflected therein will be
the basis for all calculations relating to Contribution I and the Backlog as
contemplated by Section 3.7 of the Purchase Agreement and (2) the reserves and
adjustments reflected therein will be reflected in the Preliminary Closing
Balance Sheet and the Final Closing Balance Sheet. All other commentary
included in Exhibit D beyond the amounts of agreed adjustments (which agreed
adjustments include: the contemplated calculation of foreign exchange one
Business Day prior to the Closing Date; the elimination of the double counting
of Contribution I in certain specified projects; the elimination of
inconsistencies in transfer pricing for certain specified projects; and
identified reserves with respect to the particular projects to which such
reserves are applicable, all as set forth in Exhibit D, e.g., reserves
described in Xxxxxxxx project number 39834 listed as item 19 on page 10 of
Exhibit D, including, but not limited to, the descriptions of allowed
reductions for bona fide warranty costs and no reserve increases) including,
but not limited to, statements of fact or assumptions supporting either party's
position, shall not constitute a representation or warranty (except that, with
respect to the Siam Paper project (Xxxxxxxx project number 39822), Seller
represents that the Credit Agreement has been signed), or provide the basis for
any further adjustments or reserves pursuant to this Agreement and the Purchase
Agreement. Purchaser agrees that it has been made whole for any Losses for
purposes of Section 13.2 of the Purchase Agreement to the extent that the
reserves and adjustments referred to in clause (2) above are reflected in the
Preliminary Closing Balance Sheet and the Final Closing Balance Sheet.
7.9 Multipower. To the extent that the Pyropower
Corporation's 20% share in the gross proceeds
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from the disbursement of funds to Multipower Associates from Banque Paribas
resulting from the acceleration of the payment of $20 million due to Multipower
Associates under the letter of credit issued by said bank exceeds $3.1 million,
Seller agrees to pay the amount of such excess within 5 business days after the
receipt thereof. Seller agrees to, and agrees to cause its affiliates to, keep
Purchaser informed of the status of the payment referred to above and provide
Purchaser with such information as it or its counsel may reasonably request
with respect thereto and for Purchaser to verify the amount of such payment.
7.10 APCSI Warranty Claims. (a) Promptly after receipt
thereof, Purchaser agrees to cause APCSI to notify Seller of any written
warranty claims made by a customer of APCSI for which Seller has agreed to
indemnify Purchaser pursuant to Section 5(a)(vi) or (vii) of this Agreement
(the "APCSI Warranty Claims"). Purchaser also agrees to (i) cause APCSI to
notify Seller before incurring any out-of-pocket costs relating to any APCSI
Warranty Claims, (ii) to permit Seller to verify the APCSI Warranty Costs (as
hereinafter defined) and (iii) to the extent reasonably practicable, meet with
a representative of Seller to consult on the scope and nature of the work to be
performed by Purchaser to satisfy such APCSI Warranty Claims. In addition,
Seller shall be entitled to contact and meet with the customers which have the
right to assert a warranty claim against APCSI which, if asserted, would be an
APCSI Warranty Claim, to attempt to liquidate such warranty claims; provided,
however, that a representative of Purchaser shall be present during each such
conversation or meeting and Purchaser shall approve each and every liquidation
of a warranty claim by Seller, such approval not to be unreasonably withheld.
For purposes of this Agreement, APCSI Warranty Costs shall include materials,
labor, capital costs, depreciation, indirect costs, overhead and a reasonable
xxxx-up for selling, general and administrative expenses.
(b) In the event that Seller believes that the APCSI Warranty
Costs were not reasonably incurred in connection with any APCSI Warranty Claim,
Seller may refer such dispute for resolution in accordance with the provisions
of Section 14.11 of the Purchase Agreement provided that Seller reimburses
Purchaser for such APCSI Warranty Costs prior thereto. The arbitrator will be
deemed to have ruled in favor of Purchaser if it finds that the APCSI Warranty
Costs incurred were not unreasonable in light of
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all the circumstances relating to such APCSI Warranty Claim.
7.11 Mt. Poso. Seller agrees to use commercially reasonable
efforts (but at no material cost to Seller or its Affiliates) in its capacity
as a limited partner of Mt. Poso Cogeneration Company ("Owner"), to cause Owner
to enter into an amendment to the Amended and Restated Operation and
Maintenance Agreement dated as of November 30, 1990 (the "Mt. Poso O&M
Agreement") by and between Pyro-Pacific Operating Company and Owner
substantially in the form of Exhibit E attached hereto (the "Mt. Poso
Amendment") as soon as possible after the Closing Date. Purchaser agrees to
indemnify Seller for all Losses suffered by Seller as a result of the failure
of Pyro Pacific to execute the Mt. Poso Amendment without the provisions of the
last sentence of Section 6.3(a) and Section 6.3(b) thereof attributable to acts
or failures to act on the part of POSCO; provided, however, that Purchaser
shall have no obligation to indemnify Seller under this Section 7.11 if any of
the other parties refuse to execute the Mt. Poso Amendment with or without the
provisions of the last sentence of Section 6.3(a) and Section 6.3(b) included
therein (an "Owner Refusal to Execute"). Seller shall indemnify Purchaser to
the extent as if it were set forth in Section 13.2(a)(vi) of the Purchase
Agreement and in the manner provided in Section 13.4 of the Purchase Agreement
for all Losses incurred in excess of $5,000,000 (i) in the event of an Owner
Refusal to Execute or (ii) notwithstanding the execution of the Mt. Poso
Amendment, the assertion of a claim or the institution of any action or
proceeding against Purchaser or any Affiliate, in each case, arising out of or
in any manner relating to breach of fiduciary duty alleged by limited partners
in Pyro Pacific in connection with bonus payments under the Mt. Poso O&M
Agreement.
7.12 Hismelt. Seller agrees to use commercially reasonable
efforts (but at no material cost to Seller) to consummate the transactions
contemplated by the Memorandum of Understanding attached hereto as Exhibit F.
8. APKK Closing. Purchaser shall be entitled to withhold
$600,000 (the "APKK Holdback") from the Purchase Price payable to Seller at the
Closing, which amount represents one-half of the portion of the Purchase Price
allocated to the APKK Stock. Promptly following the Closing, Seller agrees to
take all actions necessary to perfect the transfer of the APKK Stock to Xxxxxx
Xxxxxxx Netherlands
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C.V. ("FW Netherlands"), including, without limitation, holding a meeting of
the Board of Directors of APKK to approve such transfer. Upon completion of
the transfer of the APKK Stock to FW Netherlands (the "APKK Transfer"), Seller
shall cause FW Netherlands to pay the APKK Holdback to Seller by wire transfer
of immediately available funds to an account designated by Seller. In the
event that the APKK Stock is not transferred to FW Netherlands within thirty
(30) days after the Closing Date, Purchaser shall be entitled to retain the
APKK Holdback and Seller shall pay to Purchaser no later than the thirty-fifth
(35th) day after the Closing Date, by wire transfer of immediately available
funds to an account designated by Purchaser, an amount equal to $600,000, being
the other half of the Purchase Price allocable to the APKK Stock.
9. Purchase Price. Purchaser and Seller agree that
Exhibit G attached hereto is the calculation of the Closing Payment pursuant to
Section 3.1(b) of the Purchase Agreement.
10. Bioflow. Purchaser and Seller hereby agree that
notwithstanding anything to the contrary set forth in Section 8.19 of the
Purchase Agreement, the Bioflow Stock will not be transferred to Purchaser at
the Closing and Purchaser shall be entitled to withhold US $50,000 from the
Closing Payment. Promptly after the Closing, Seller agrees to comply with the
provisions of the Cooperation Contract dated June 28, 1991 together with the
appended contracts thereto (the "Sydcraft Agreement") with respect to a
transfer of the Bioflow Stock to Purchaser and to use commercially reasonable
efforts to transfer the Bioflow Stock to Purchaser. Without limiting its
obligations under the Sydcraft Agreement, Seller further agrees as follows:
(a) Seller shall notify Sydkraft Aktiebolag ("Sydkraft") of
the transactions contemplated herein and request Sydkraft's consent to
the transfer to Purchaser of the Bioflow Stock and of Seller's rights,
duties and obligations under the Sydcraft Agreement.
(b) If Sydkraft consents to such transfer, Seller shall
promptly transfer the Bioflow Stock to Purchaser in accordance with
the procedures and against receipt of the consideration specified in
the Purchase Agreement.
(c) If Sydkraft does not consent within 30 days after the
Closing or such later date as may be
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extended by Purchaser, Seller shall pay Purchaser an agreed upon
amount for the Bioflow Stock in immediately available funds within 15
days after the expiration of such period; provided that if Purchaser
and Seller do not agree on an amount to be paid to Seller within such
15 day period, such amount shall be determined by arbitration pursuant
to Section 14.11 of the Purchase Agreement. Seller further agrees to
assign and transfer to Purchaser all residual rights under the Bioflow
Agreement either as a result of negotiations with Sydkraft or the
termination by Sydkraft of the Bioflow Agreement pursuant to Section
14.2.1 thereof.
(d) Seller further agrees that if, as a result of the
termination of the Bioflow Agreement or for any other reason permitted
under the Sydcraft Agreement, Sydkraft exercises its right to buy out
the Bioflow Stock, Seller shall not consummate any such sale without
the prior written consent of Purchaser;
provided, however, that if Purchaser
has not consented to such transaction within 15 days of the occurrence
of the event which triggered the exercise of Sydkraft's right to
purchase the Bioflow Stock, the purchase price for such Bioflow Stock
shall be determined by arbitration in accordance with Article 15 of
the Sydcraft Agreement. Upon the consummation of any sale of Bioflow
Stock pursuant to this Section 10, Seller shall wire transfer in
immediately available funds to Purchaser the excess, if any, of the
amount paid by Sydkraft for the Bioflow Stock over the amount withheld
pursuant to this Section 11 promptly after receipt thereof.
11. Miscellaneous. (a) Purchasers acknowledge and agree
that the Negotiated Purchase Price Adjustments (as hereinafter defined), the
indemnity provided in Section 5 of this Agreement (to the extent such
indemnities are fulfilled by Seller) and the adjustments agreed by Purchaser
and Seller reflected in the adjusted Balance Sheet or booked by the units in
their September accounts, make the Purchasers whole for any Losses incurred
solely in connection therewith for purposes of Section 13.2 of the Purchase
Agreement and Purchasers shall not be entitled to be indemnified under Section
13.2 with respect thereto. For purposes of this Agreement, "Negotiated
Purchase Price Adjustments" shall mean (1) an increase to the Purchase Price of
US $300,000 as a result of the License and Technical Assistance Agreement dated
as of April 1, 1975 by and between Seller and Combustion Engineering, Inc.
becoming an Excluded Contract, (2) a reduction of the Purchase Price of US
$800,000 as a result of POSCO Panther Creek, Inc. being eliminated as a Subject
Company, (3) a reduction of the Purchase Price of US $5,000,000 as a result of
the Mt. Poso Amendment and (4) a reduction of the Purchase Price of US
$3,500,000 for costs and risks associated with a proposal to construct two 250
megawatt boilers in Puerto Rico.
(b) Seller or one of its Affiliates will assume the
obligation of API to Xxxxx X. Xxxxxx under the Xxxxxxxx Pyropower, Inc.
Deferred Compensation Plan, dated January 28, 1994 ("DCP"), calculated as of
Closing in accordance with the terms of such Plan, which calculation will be
agreed upon between Seller and Purchaser and which amount will be approximately
$268,000, and in connection therewith, Seller will receive a transfer (or
credit) of an equal amount in cash from FW at the Closing. Seller hereby
agrees to indemnify and hold Purchaser and the Subject Companies harmless from
all Losses relating to the DCP.
Purchaser consents to the distribution by API prior to Closing
of certain amounts previously deferred by employees out of bonuses with respect
to years prior to 1995.
(c) Purchaser agrees to fulfill its obligations under
Section 10.4(a) of the Purchase Agreement on or prior to October 31, 1995.
12. Successors and Assigns. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
successors of the parties hereto.
13. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall constitute the same instrument.
14. Headings. The headings of the Articles, Sections and
paragraphs of this Agreement are inserted for convenience only and shall not be
deemed to constitute part of this Agreement or to affect the construction
hereof.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (OTHER THAN WITH
RESPECT TO PRINCIPLES OF CONFLICTS OF LAWS THEREUNDER (EXCEPT SECTION
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5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND OTHER THAN WITH RESPECT TO
ANY ISSUE OF ARBITRATION THAT MAY BE GOVERNED BY THE LAWS OF THE UNITED STATES,
AS TO WHICH THE FEDERAL ARBITRATION ACT, XXXXX 0, XXXXXX XXXXXX CODE, AND THE
1958 UNITED NATIONS CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS SHALL APPLY).
16. Disputes. Except as otherwise expressly provided in this
Agreement, any dispute, controversy or claim arising out of, relating to or in
connection with this Agreement, including any question regarding its existence,
validity or termination, or regarding a breach thereof, shall be referred to,
and finally settled in accordance with Section 14.11 of the Purchase Agreement.
17. Severability. If any provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner adverse to any
party. Upon such determination that any provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled.
18. Purchase Agreement Not Otherwise Amended. Terms and
provisions of the Purchase Agreement not amended hereby shall continue to
remain in full force and effect.
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IN WITNESS WHEREOF, each of Purchaser and Seller has caused
this Agreement to be executed on its behalf by its duly authorized Officer.
XXXXXX XXXXXXX CORPORATION
By:________________________
Name:
Title:
X. XXXXXXXX CORPORATION
By:________________________
Name:
Title:
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